This article is an attempt to identify and expose unfair insurance defense
trial tactics, so deserving victims receive full justice.

As practitioners, we regularly see the injured in our offices pretrial.
They move slow and stiffly. They grimace and worry about their health
as well as interruption of the family’s income and bills. They worry
because they cannot work. They ask for our help because the insurance
adjusters promises have fallen flat i.e. “Mamm, we just need your
tape recorded statement and written releases of your medical/employment
records to make you a fair settlement offer”. No settlement. Third
party bad faith is gone, and so is the motivation for insures to act fairly
and promptly. Instead, they litigate – even if their costs exceed
the plaintiff’s settlement demands. They drive the claim value down
at any cost. As practitioners, we know this scenario all to well.

Injury victims are now forced into the courts system. The system’s
response to these tactics that have deflected settlement is to divert
them into mediation, in hopes of fairness and reducing the courts swelling
caseloads. The hardworking mediator’s earn about $600 a case for
three to four hours work. Judges can only try so many cases, just like
trial lawyers. They get tired of it all. Even the defense lawyers’
tire of marching to the drum beat orders to save profits as well as having
to protect their trial record. But, when forced into the trial corner
by their corporate master, some resort to subtle prejudicial dirty tricks
in court in order (in concert with their hired gun experts) to destroy
our client’s credibility, often before we or the good trial judge
can un ring the bell. Just think, if they played fair, there would be
less motions in limine, less trial objections and side bars, less new
trial and additur motions, appeals, and . . . more justice. Here are a
few examples with responses referenced by footnotes:

Actual Testimony

Intended Effect

1.

Voir Dire – Have you heard about frivolous lawsuits?

1.

Insurance Rates and court filing will go up with a Plaintiff’s verdict.

2.

Voir Dire – No visible bumper damage means no injury?

2.

There is a correlation. Plaintiff is a phony.

3.

Defense Dr. – prior injury and old age did this; it was just a matter of time.

The impact and delta V (velocity) is like a sneeze, cough, stepping off a curb.

19.

The forces of impact are low; plaintiff is a phony.

20.

God would not approve of Plaintiff’s claim.

20.

Plaintiff lacks credibility.

CONCLUSION

The attached footnotes provide annotated responses, facts, and authority
to help plaintiffs lawyers identify and overcome defense trial tactics
in minor impact, soft tissue (MIST) cases. My hope is that the Plaintiff’s
bar and court will put a stop to those tactics that impugn the integrity
of the court and deny Plaintiff’s justice.
False – the CA judicial council statistics show a decrease in filings
in the last decade. Also, CA victim’s claims decreased 26%, whereas
nationwide claims increased 8.5%. (LA Times, March 20, 1999– “Insurer’s
Cut Car Claims in the Ninety’s”.)

Studies say soft tissue takes time to heal. Average recovery time 17 to
123 days –European Spine(2001). 24% still symptomatic after 1 year
-Journal of Neurology(1995)

Irrelevant, improper character evidence, and expert testimony (DME is not
a psychiatrist).

Irrelevant, many victims have no medical insurance and a lien is their
only hope for treatment – merely a form of credit – that’s
all. Evidence Code 402; MIL.

Accusing the plaintiff of suppression of evidence without support in the
record through hints, suggestions or insinuations is illegal. Keena v
United R (1925) 197 C 148, 155. This also assumes facts not proven.

Arguing matters not in evidence is illegal, and so is vouching. This is
irrelevant. Evidence Code 352.Brokopp v Ford Motor (1977) 71 CA3rd 841,
862. Attempting to use closing to invite jury speculation on unsupported
inferences or to introduce new evidence is misconduct. People v Bolton
(1929) 23 C3d 208, 213. Also, so is stating personal beliefs.

Appealing to juror self interest violates the fundamental concept of an
objective trial by an impartial jury (“Brokopp”, supra).

Evidence codes 800, 352, 402, and the Kelly/Frye rules limit testimony
by experts. A biomechanic cannot render medical opinion as an M.D. i.e.
force and g’s. They are simply not qualified.

Evidence Code 352, 402. See number’s 11, 13, and 14 above. They have
no “fee facts” knowledge of chiropractic in our community,
nor knowledge of chiropractic prices per se.

Evidence Code 350, 352

See numbers 11, 13, and 14 above

See numbers 11 and 13 above

See numbers 11 and 13 above

Kelly/Frye: Evidence 350, 352, 402. This reference to the “Allen”
study is an over generalization of the entire population. It’s misleading,
as the risk factors that increase susceptibility to injury are different
in each case. The pulse is short. This study is criticized and not generally
accepted in our scientific community. No one gets hurt stepping off a
curb or sneezing, whereas accidents do hurt people.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.